Issue before the Court: Whether appellate counsel was ineffective under the state standard for: filing a cursory, poorly written brief; failing to argue excessive sentence; failing to file a leave application; and failing to communicate with his client. 

 

Factual Background: In the aftermath of a 1996 drive-by shooting where 19-year-old Alvarez and codefendants killed a 14-year-old and injured two fifteen-year-olds, he was convicted of first-degree conspiracy and second-degree murder, among other charges, and sentenced to an aggregate term of 66 2/3 years to life in prison. The First Department affirmed his convictions. 

 

In a 2017 coram nobis application, Alvarez explained that assigned appellate counsel’s sole communication with him was a one-page, two-sentence letter, sent after his case was put on the dismissal calendar. Counsel did not provide Alvarez with the briefs, notify him of the Appellate Division’s decision, or seek leave from the Court of Appeals. Moreover, counsel submitted a low quality brief that did not challenge the length of Alvarez’s sentence.  

 

Held: In a 5-2 decision penned by Judge Stein, the Court held that appellate counsel’s deficient performance did not compromise the fairness of Alvarez’s appeal and was therefore effective under the state standard. Given the “heinous nature” of Alvarez’s crimes and his “lamentable behavior and lack of remorse at sentencing . . . it [could not] be said that appellate counsel lacked a sound, strategic reason to forgo pursuing a discretionary reduction of defendant’s sentence that had little chance of success.” The court conceded that counsel’s appeals brief was “somewhat terse,” poorly drafted, and “not a model to be emulated,” but determined that the brief still demonstrated counsel’s “grasp of the relevant facts and law.” Because Alvarez only sought the opportunity to argue for a sentence reduction, he had effectively “concede[d]” that the other issues raised in counsel’s brief would have “fared no better,” even if “championed more effectively.” Appellate counsel’s failure to file a criminal leave application did not, alone, constitute ineffectiveness, and Alvarez identified no issue that could or should have been raised therein. As for counsel’s lack of communication, the “unsupported allegations” in Alvarez’s affidavit were insufficient to sustain his burden of proof. 

 

CAL Observes: While giving lip service to the “greater protection” afforded by this State’s ineffectiveness standard, the majority articulated a shamefully low bar for effective appellate advocacy: seemingly, the filing of any brief with any reviewable issues at all. Encouraging “skepticism” toward defendants who are “unable to demonstrate any prejudice,” the majority bent over backwards to excuse unacceptable representation. This decision appears to have been driven by the bad facts of Alvarez’s case rather than a neutral analysis of appellate counsel’s performance.

 

In a lengthy dissent, Judge Rivera excoriated the majority for “eroding our constitutional standard for effective assistance,” “import[ing] a prejudice standard” this State has “long rejected,” and “send[ing] a message to the profession that there is seemingly little to no value attached to a lawyer’s skill in advocacy.” She emphasized that counsel’s perfunctory, error-ridden brief “violate[d] every rule about effective appellate advocacy taught to law students across the country.” 

 

In a separate dissent, Judge Wilson argued that counsel’s failure to seek a sentence reduction was, standing alone, ineffective assistance of counsel. His opinion is a powerful affirmation of New York courts’ moral and constitutional duty to treat children differently than adults as well as a thoughtful exploration of Alvarez’s remarkable growth in the 25 years since he was sentenced.